On Wednesday, House Republicans voted to open an impeachment inquiry into President Joe Biden. Not so very long ago, this would have been a momentous event, the advent of a constitutional crisis that would rivet every politically conscious American. As matters stand, the prospect of further investigation is unlikely to draw much more than a weary groan (or perhaps in MAGA quarters a faint cheer) from a public grown sadly accustomed to the progressive decay of fundamental institutions of American governance into platforms for partisan discord.
The public indifference to the House’s antics this week will be justified. Every indication is that should the House actually impeach President Biden the chances of his conviction in a Democratic-majority Senate (with some Senate Republicans publicly expressing concerns about the House leadership’s shenanigans) are zero.
But this political reality should offer small comfort to anyone who respects the constitutional traditions of this country and hopes for a restoration of the health of American political culture. What House Republicans have done is a radical departure from 235 years of American practice. Proceeding with this inquiry diminishes the utility of impeachment as a vital defense against authoritarian, criminal, or grievously incompetent presidents. And, it will surely degrade the authority of Congress to perform legitimate oversight and control of the president and the executive branch.
To understand why this is so requires cutting through the fog of misinformation generated by the Republican radicals behind the impeachment effort.
The History and Precedent of Impeachment
Impeachment is an ancient legislative tool against executive misconduct. In both Great Britain, where it was invented in 1376, and the United States, it has virtually always been treated as a weapon of last resort. As Lord Chancellor John Somers colorfully put it in 1691, “the power of impeachment ought to be, like Goliath’s sword, kept in the temple, and not used but on great occasions.”
There are sound reasons for the caution with which impeachment has traditionally been employed for presidents. To remove the person who, constitutionally, embodies the executive power of the national government would profoundly disrupt the conduct of public life. And, as Trump’s supporters never tired of saying during his first trial, a successful presidential impeachment necessarily overrides the public’s choice in the last election. But even starting the ponderous machinery by which Congress seeks a president’s ouster is itself hugely costly because it invariably vacuums up a significant fraction of two scarce resources – congressional time and public attention.
Accordingly, both precedent and common sense dictate that before seeking the imprimatur of the House of Representatives for a formal impeachment inquiry, a president’s critics should be obliged to meet at least two minimal requirements: (1) identify how they believe the president has committed “treason, bribery, or other high crimes and misdemeanors” and (2) provide a reasonable quantum of evidence that the president indeed committed such offenses.
As I have explained at length in my book High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump, these minimal requirements have been satisfied in every previous presidential impeachment inquiry. Andrew Johnson was impeached for abusing presidential power in the management of post-Civil War reconstruction and, in particular, for openly violating the Tenure of Office Act by firing Secretary of War Edwin Stanton.
The House opened a formal impeachment inquiry on Richard Nixon only after investigations by the Watergate special prosecutor and the Senate Watergate Committee identified an array of conduct that, once brought home to the president, was plainly impeachable.
The House opened the Clinton impeachment inquiry only after Independent Counsel Ken Starr presented his exhaustive report proving that the president had lied under oath about adulterous sex. Whether that conduct amounted to “high crimes and misdemeanors” was fairly debatable, but the facts of Clinton’s disgraceful conduct and the constitutional theory for its impeachability were plain from the outset.
The first Trump impeachment inquiry was authorized only after public revelation of Trump’s attempt to use presidential power to coerce Ukrainian leaders into announcing an investigation into presidential rival Joe Biden. And the second Trump impeachment followed only days after the former president’s attempt to overturn his election loss produced a riot in the Capitol directed at and witnessed by the members of Congress who voted to impeach him.
In short, in every previous case, the essential focus of the inquiry – both in terms of the range of conduct at issue and nature of the alleged constitutional violation – was clear to Congress and the public from the outset. Likewise, in every previous case, the House did not launch a formal inquiry until substantial evidence supported some identifiable constitutional offense.
Neither is true of the Biden inquiry.
The Biden Impeachment Inquiry
Indeed, the most remarkable feature of the Biden inquiry vote is that no one really knows exactly what the inquiry is supposed to be about. The resolution authorizing the inquiry specifies no subject matter beyond saying that it can include matters described in a Sept. 27, 2023 memo by Committee Chairs James Comer (R-KY), Jim Jordan (R-OH), and Jason Smith (R-MO).
This memo utterly fails as either a justification for, or a reasonable description of the proper scope of, the proposed impeachment inquiry.
First, the memo is entirely concerned with events from 2014-2019, while Joe Biden was either vice president or a private citizen. It argues (correctly in my view) that a president can, in theory, be impeached for conduct that predates his presidency. But the effort to reach back so far into the past and to sweep in years of private conduct is unprecedented.
Second, the memo fails to specify any particular impeachable offense allegedly committed by Biden. It opens grandly, but nebulously, by saying that Biden:
may have: (1) performed official acts or changed United States policy as a direct result of the foreign money received by his family; (2) provided access to his federal office in exchange for his family’s receipt of foreign money; and/or (3) knowingly participated in a scheme where foreign business interests were led to believe that they would gain access to him (in his official capacity) if they were to pay substantial amounts of money to his family.
Note that the memo carefully avoids alleging that Biden himself ever received any money from his family’s foreign business ventures. And, indeed, as far as we know there is no credible evidence that he did so.
Still, if it could be proven that Biden performed “official acts” as an explicit quid pro quo for payments to family members, that would arguably be a form of criminal bribery under 18 U.S.C. § 201(b)(2) and thus an impeachable offense under the constitutional standard of “treason, bribery, or other high crimes and misdemeanors.”
However, strange though it may seem, “providing access” or scheming to create the impression of “access” to the vice presidential office in return for payments to family members or anyone else is almost certainly not federal criminal bribery. In McDonnell v. United States, the Supreme Court held that bribery requires performance of, or a promise to perform, some “official act,” which it defined as a decision or action on a matter within an officer’s official capacity.
That said, if it could be proven that Joe Biden, while Vice President, consciously exchanged official access, in the sense of an opportunity to influence his decision-making process in a matter within his official authority, or even “schemed” to create the illusory prospect of official access, in return for personal payments to family members, that would, in my view, be corruption in the broad sense embraced by the phrase “high crimes and misdemeanors.”
The Allegations of “Corruption”
The problem is that neither in the September memo nor anywhere else have Biden’s Republican pursuers offered proof, or even reasonable grounds to believe, that Joe Biden committed criminal bribery or impeachable corruption.
The allegations in the September memo amount to this: Joe Biden’s son Hunter, and to a lesser degree Joe Biden’s brother James, made money by taking advantage of the Biden name to convince foreign businesses to deal with them. One can also fairly conclude that the foreign businesses who dealt with Hunter and James did so, at least in part, in the hope of enhancing their own international credibility by associating with a family member of the U.S. Vice President, and, perhaps, of cultivating Joe Biden’s general goodwill by partnering with his son or brother.
The memo darkly terms this activity “influence peddling.” Certainly it reflects no great credit either on Hunter and James Biden or on the foreign companies linked to them. But absent proof that Joe Biden himself took or promised to take official action, or offered official access (as defined above) or the illusion thereof, in exchange for money paid to Hunter or James, it was neither criminal nor impeachable.
The Republican memo cites five basic episodes to justify a formal inquiry. All of them crumble under even modest scrutiny.
Hunter and Burisma: The memo opens by recycling the claim, which dates to Trump’s first impeachment, that Joe Biden pressured Ukraine to dismiss prosecutor Victor Shokin because Shokin was investigating the Burisma corporation, which had placed Hunter on its board at an exorbitant salary. The facts, long since established beyond doubt, are that Shokin was not actively investigating Burisma, and was actually viewed by honest Ukrainian officials, the U.S. State Department, and anti-corruption officials of the European Union as an impediment to exposing corruption at Burisma and elsewhere. Thus, Joe Biden’s successful effort to secure Shokin’s firing was consistent with established U.S. policy prior to his involvement and was, if anything, contrary to Burisma’s interests.
The only contrary “evidence” cited by the Republican memo is a single 2020 report of an anonymous FBI informant who claimed that Joe and Hunter Biden directly pressured Burisma owner Mykola Zlochevsky to hire and retain Hunter on the Burisma board, that they demanded and received payments of $5 million each, and that Zlochevsky wire transferred money to the Bidens “in exchange for Shokin’s firing.”
The informant’s claims are, of course, in complete defiance of the facts regarding Shokin. Likewise, as the Washington Post has demonstrated, the informant’s assertion that Zlochevsky bribed the Bidens to clear the way for an energy deal in the United States does not square with the known facts about Burisma’s activities in the U.S. Perhaps most importantly, although Hunter Biden’s activities in Ukraine have been exhaustively investigated by a Republican-led Senate Committee that issued its report in 2020; by Special Counsel David Weiss, a Trump appointee as Delaware U.S. Attorney, who has been investigating Hunter Biden since 2018; and by House Republicans since they regained control of the chamber in January of this year, not one scintilla of evidence supporting the informant’s claims has emerged. Leaving all other considerations aside, the idea that Zlochevsky could have paid Hunter and Joe Biden $5 million apiece without leaving a single discoverable trace of such huge transactions is absurd.
Payment from Russia: The Republican memo next notes that in 2014 Yelena Baturina, a very rich Russian woman, deposited $3.5 million into account held by an investment management group founded by Hunter Biden and others. It claims that, the same year, Joe Biden was present at a Washington, D.C. dinner attended by Ms. Baturina. And it concludes with the observation that, eight years later, in 2022, Baturina was not included on a list of oligarchs sanctioned by the Biden administration following Russia’s full-scale invasion of Ukraine.
That’s it. That’s the whole allegation.
The sports car: Next, the memo reports that in 2014, Kenes Rakishev, the director of Kazakhstan’s state-owned oil company KazMunayGas, bought Hunter Biden a $142,000 sports car while Hunter was a Burisma board member and was about to represent Burisma on a trip to Kazakhstan to evaluate a deal between Burisma and KazMunayGas. The memo also claims that Joe Biden was present at two dinners attended by Rakishev and Karim Massimov, the prime minister of Kazakhstan.
That’s the whole allegation as it relates to either Biden. The memo makes no claim that Joe Biden actually got the fancy car or even rode in it. Nor that Joe Biden was involved in any oil or gas deals in Kazakhstan or ever did or offered to do anything whatsoever in an official capacity relating to Kazakhstan.
“Biden Influence Peddling in Romania”: Next up is a section reporting that from 2015-2017 a company owned by Romanian real estate tycoon Gabriel Popoviciu paid some $3 million to Robinson Walker LLC, a company owned by Rob Walker, one of Hunter’s business associates. The LLC later made payments totaling over $1 million to Hunter Biden and others. The kicker is that in 2014-15, Popoviciu was under investigation for corruption and in 2015 retained Hunter Biden (who is a lawyer) to assist in his ultimately unsuccessful defense against the charges. Whether the payments to Hunter from Walker’s company related to his representation of Popoviciu, or indeed were derived from the Romanian’s payments to Walker’s LLC, is unknown.
Once again, there is not even a suggestion that Joe Biden got any money, asked for money on his son’s behalf, took or offered to take any official action in Romania that would affect Popoviciu, or offered any official access to Popoviciu or any other Romanian in return for payments to his son.
Hunter Biden’s dealings in China: The last section of the Republican memo covers Hunter Biden’s business dealings in China.
The memo recounts that, in 2013, two Chinese-registered asset managers, Bohai Industrial Investment Fund and Harvest Fund Management, formed a partnership, called BHR, with two American investment advisory firms, one of which included Hunter Biden, for the purpose of investing western capital in China. Hunter became an unpaid member of the BHR board and did not take an equity stake until 2017 when Joe Biden left the vice presidency. The Republican memo does not suggest any impropriety whatever in this business arrangement. Its sole reference to Joe Biden is that he wrote college letters of recommendation for the children of Jonathan Li, a principal in one of the Chinese investment firms.
The most breathless allegations in the Chinese section relate to the fact that, in 2017, after Joe Biden left office and long before he declared his 2020 presidential candidacy, Hunter Biden, James Biden, and others made a consulting deal with CEFC, a large Chinese energy company. This seem to have involved projected collaboration in developing various energy projects. No such projects ultimately materialized but, in 2017-2018, CEFC paid some $3.8 million in consulting fees to Hunter and James Biden, and an additional $1 million legal retainer to Hunter to represent Patrick Ho, a CEFC officer who was under investigation for a scheme to bribe leaders in Chad and Uganda.
The memo makes much of two May 2017 emails from Hunter Biden associate James Gilliar that suggest Joe Biden was to have a 10% stake in the CEFC venture. In the end, the completed agreement included no such provision. And there is no evidence that Joe Biden was ever involved in any business relating to CEFC Energy or ever got a dime, directly or indirectly, from his son’s dealing with that firm.
But the larger point is that, in 2017, Joe Biden was a private citizen and there would have been nothing illegal or improper about his joining a group seeking business with a Chinese company.
The memo huffs that CEFC has connections with the Chinese military and the Chinese Communist Party and has been known to bribe foreign officials. But all these things are often true of very large Chinese corporations. The absurd, but inescapable implication appears to be that any private person who does business with a large Chinese corporation can be impeached if later elected president.
The Bottom Line
The bottom line is that Hunter Biden made a whole pile of money he probably did not deserve for doing nothing much in particular beyond flaunting his father’s name. But those calling for a presidential impeachment inquiry have offered not one shred of even remotely credible evidence that Joe Biden ever took a bribe, sold access to his office as vice president in return for payments to Hunter, or indeed abused his position in any way.
The presumable response to this fact is that the absence of evidence is the very thing that requires authorization of a formal impeachment inquiry to create more legal leverage in the search for evidence. The glaring weakness in that contention is that hardliners pursuing the inquiry do not even have a credible theory as to what impeachable offense Joe Biden is supposed to have committed and certainly have not identified evidence they have been denied that would, if produced, prove their case.
Let us be plain. The House Republicans’ objective is not, and never has been, to soberly investigate genuine concerns about a president’s abuse of his current or even former office. This “inquiry” is instead a transparently cynical exercise in electoral dirty pool. The point is to create an impression among voters with insufficient time to carefully assess the facts that Joe Biden is somehow corrupt, and that he should be seen as, at best, no better than his likely 2024 opponent, the twice-impeached, quadruply-indicted Donald Trump.
To that extent, Republicans should congratulate themselves because the ploy may work. But the cost is likely to be high, not least because it could help return to office a man whose autocratic ambitions are plain. Yet even if that immediate catastrophe is avoided (or even if one sees a Trump restoration as a consummation devoutly to be wished), cranking up an impeachment inquiry without a reasonable basis devalues a crucial constitutional shield against genuinely dangerous future presidents. And although it is Republicans who are now deploying impeachment as a shabby tool of partisan warfare, Democrats are not saints and the temptation to do the same when the places are reversed is likely to be overpowering. Republicans are thoughtlessly embracing a world in which every presidency and every congress is consumed by impeachment and none of the country’s business can be done. They should reconsider.